President Jacob Zuma says government will expedite the Parliamentary process to enact a new Protection of Information law to protect the integrity of state information, deal with espionage and eliminate information peddling.
The current Protection of Information Act dates from 1982 and according to an explanatory note accompanying the new Bill introduced to Parliament last year, the present law “requires the spending of a great deal of government resources to protect a mass of information that does not actually require protection”.
The new Bill therefore seeks to modernise the information lifecycle management (ILM) regime for the state and state entities, as well as regulating “private intelligence”, a new development.
Zuma said the new law “would assist in ensuring that we give key state institutions sufficient protection, and the possession of state information without authority and rumour mongering based on state information shall be punishable by law.
“At the same time we appeal to all that we should respect the Constitutional mandate of the intelligence community to keep some information at their disposal secret as required to maintain national security,” Zuma added.
The president added that “in recent times several countries in Africa have moved towards Constitutional guidance on the work of intelligence.
“This confirms the correctness of our system in ensuring accountability and transparency in the work our intelligence structures do.
“In the conduct of this work, we commit ourselves to the supremacy of the Constitution and its provisions,” he said.
“We will continue to cooperate with the oversight institutions; the Joint Standing Committee on Intelligence, the Office of the Inspector-General, the Auditor-General and others, in reviewing performance, measuring the value of money and ensuring respect for the rule of law.”
The National Assembly’s Ad Hoc Committee on Intelligence Legislation last year October recommended that the Bill be shelved until after this year’s elections.
An explanatory note tabled at the ad hoc committee`s last meeting on October 15 noted that the current ILM regime was based on Minimum Information Security Standards (“MISS”) approved by Cabinet in December 1998 as part of a national information security policy.
“The MISS replaced the former Guidelines for the Protection of Classified Information (SP 2/8/1) of March 1988. The MISS applies to all departments of State subject to the Public Service Act 103 of 1994 or any other department that handles classified information in the national interest,” the memorandum says.
“The absence of a comprehensive statutory framework has resulted in an unstable and inconsistent classification and declassification environment, excessive costs and inadequate implementation. Government departments are straining under the burden of massive amounts of classified documentation. A lack of clarity and direction on what actually requires protection has resulted in this state of affairs,” the memorandum further notes.
“The current protection regime, some of which was inherited from the apartheid era, encourages the needless protection of huge amounts of information. There still exists to some degree a default position of secrecy. This approach is inconsistent with South Africa`s new constitutional order.”
The memorandum says the new regime will deal with questions such as:
What information may be classified and what information may not be classified?
Who may classify information?
When should classified information be declassified and who can declassify information?
How long should information remain classified and when should classified information be automatically declassified?
What procedures for classification and declassification should be put in place and who should make such procedures?
What system for the review of classified information should be put in place and what criteria or factors should be considered when classified information is reviewed?
Should reports be made to Parliament in relation to the application of the classification and declassification standards and procedures?
Should procedures be made for requests for the review of the classified status of information and if so what type of procedure and who may make such requests?
Can declassified information be released to the public?
What kind of oversight is required for the system of information protection?
Should there be a central database with all declassified information which is available to the public and if so, who should establish and maintain such a database?
“The aim then is to provide a statutory framework which provides direction to those in government who are charged with information protection; substantially reduce the amount of state information that is protected from disclosure; provide more effective protection to that information that truly requires safeguarding; and to align the information protection regime with the values, rights and freedoms enshrined in the Constitution,” the memorandum avers.
The Bill also – for the first time – prescribes private intelligence and proscribes foreign intelligence organisations in SA.
A background note to the Bill, adds that in addition to ILM, the Bill also aims to “fill the existing legal gap in relation to threats faced by the state from private intelligence companies, or individuals engaged in private intelligence collection by identifying and criminalising those actions that undermine the security of the state.
“Of particular concern to the state, has been the extent to which individuals with links to foreign intelligence structures attempted to undermine statutory national intelligence structures by peddling false information aimed at sowing dissent. The draft Bill criminalises such conduct.”
The document notes the Bill’s drafters had in mind the “Browse Mole” report that claimed African National Congress president Jacob Zuma was receiving foreign funding to bring him to power as well as the “Meiring report” by post-apartheid SANDF chief Georg Meiring that accused his then-deputy and successor Siphiwe Nyanda (now communications minister) of plotting a coup.
“In both instances, individuals operating outside of the state have brought information to state security and intelligence services about prominent South Africans allegedly involved in conspiracies against the government,” the backgrounder says. In both instances the allegations were untrue.
A Review Commission on the Regulation of the Private Security Industry focussing on “Private Intelligence” identified three instances where the activities of private intelligence companies could threaten national security:
Where they act as fronts for foreign interests with the intention of causing harm to the South African state;
Where they engage in unlawful covert collection of information. “In this regard, a distinction must be made between protection of personal information and protection of information”;
Where the disclosure poses a threat to national security.
The backgrounder says these activities can be broken down into main categories:
Where individuals access protected information and distribute it to individuals whose intention is either to undermine the state or give undue advantage to a foreign interest or state;
Where individuals peddle false information such as that contained in the Meiring Report or the Browse Mole document with the intention of sowing dissent
“In this regard, the following offences are created:
Espionage Offences: where the objective is to give advantage to another state ;
Hostile Activity Offences aimed at prejudicing the state to prejudice the state ;
Harbouring or concealing persons involved in espionage or hostile activities;
Provision of false information to a national intelligence structure
In addition, the Bill requires intelligence agents that are resident in South Africa to register, and criminalises non registration.
The backgrounder adds the ministry does not expect such agents to register. The clause is there as a “catch all” means to prosecute them when they were discovered. A ministerial law advisor added the ministry also did not plan to regulate “business intelligence” professionals, researchers or investigate companies that provided business decision support and strategic consulting.
Media groups concerned
This has not, however, satisfied media freedom groups. The Freedom of Expression Institute (FXI) says the Bill only “pay token respect to the tenets of the Constitution… [and] leaves much to be desired in terms of operational efficacy and adherence to the doctrines of transparency and openness.
FXI legal expert Melissa Moore says the “Bill has sweeping provisions which grant rights to political functionaries to ‘classified` information. The nett upshot of this is a negation of the public`s right to know and [the Bill] is exceptionally subjective.”
Former Intelligence minister Ronnie Kasrils and retired national intelligence coordinator Barry Gilder have argued the opposite and say the Bill will lead to greater openness and transparency, not less.
The Intelligence Services ministry has also included a public interest exemption clause in the latest version of the Bill to cater for journalists and whistleblowers, while earlier drafts of the Bill already criminalised the use of secrecy provisions to hide government or official incompetence or misconduct.
Gilder says their opposition comes from the misconception that the purpose of the legislation is to protect government information from the public. “This is just not true,” he says.
“The real purpose is, in the main, to protect such information from the nation’s adversaries. The public, so to speak, is just an innocent bystander.”
“Who are these adversaries? They are other governments, firstly, who seek to have insight into and influence our thinking, decisions and actions in order to advantage themselves in their dealings with us.”
“They are domestic entities that oppose the democratic order and seek to subvert, sabotage or undermine government processes in doing so. They are the criminals, the corrupt, the extremists.
“Government has a responsibility to protect the integrity of its processes against such adversaries on behalf of the public. The public is not the adversary,” the former spymaster argues.